New York v. Quarles: A Public Safety Exception to Miranda

New York v. Quarles: A
The United States Supreme Court has proclaimed that the
"core virtue" of Miranda is its "rigidity."1 Only five years ago,
Chief Justice Burger announced that he would "neither overrule
Miranda, disparage it nor extend it at this late date."' 2 In New
York v. Quarles,$however, the Court abandoned its former position and refused to apply Miranda "in all its rigor"" to a situation which the Court viewed as posing a public safety threat.
The Burger Court's shift in position toward Miranda has
been manifested in several of its decisions within the last decade. 5 These decisions have indicated the Court's desire to dimin1. Fare v. Michael C., 439 U.S. 1310, 1314 (1978) (citing Miranda v. Arizona, 384
U.S. 436 (1966)). In Miranda, the Court held that police must apprise individuals of
certain rights prior to interrogation. Miranda involved four defendants who were convicted based on confessions admitted at trial. The confessions were obtained after pro-
longed questioning conducted in police dominated rooms in the absence of an attorney.
The Court stated that the admission into evidence of these coerced confessions was a
violation of the fifth amendment privilege against self-incrimination. Miranda was the
first case in which the Court applied the privilege against self-incrimination to custodial
interrogations. Further, the Court set forth rigid requirements for the courts and police
to follow to ensure that suspects receive full fifth amendment protection. See also Tague
v. Louisiana, 444 U.S. 469 (1980) (Miranda principles govern police action and the
Court's decision in evaluating the constitutionality of interrogations). For a further discussion of the constitutional basis of Miranda, see Edwards, Interrogationof Criminal
Defendants-Some Views on Miranda v. Arizona, 35 FORDHAM L. REV. 181 (1966);
Schrock, Welsh & Collins, InterrogationalRights: Reflections on Miranda v. Arizona, 52
S. CAL. L. REV. 1 (1978). For an analysis of the Miranda requirements, see Sunderland,
Self-Incrimination and Constitutional Principle: Miranda v. Arizona and Beyond, 15
CHANGED AMERICA 286-87 (1979) (discussing the basis and criticism of Miranda and its
effect on law enforcement).
2. Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Burger, C.J., concurring). Chief
Justice Burger stated that the strength of Miranda, i.e., its clarity in providing guidelines for the police and courts to follow, has been severely weakened. Id. at 304-05. For a
further discussion of the adverse effect of Innis on Miranda, see infra notes 77-86 and
accompanying text.
3. 104 S. Ct. 2626 (1984).
4. Id. at 2632.
5. The exceptions to Miranda are discussed at infra note 7.
[Vol. 6:153
ish the fourth and fifth amendment safeguards created by the
Warren Court.' The Burger Court's response to Miranda, as
demonstrated clearly in Quarles, is best characterized as an invitation to carve out exceptions to the Miranda rule. However,
this most recent public safety exception to the fifth amendment
and Miranda in the context of police interrogation may eliminate the need for further exceptions. A public safety exception
to the Miranda requirements will effectively preclude a further
evisceration of the doctrine since there is little left from which
an exception can be made.'
The Court's treatment of the Miranda issue in Quarles was
not unique.9 Justice Rehnquist's majority opinion echoed past
decisions where a Miranda violation was involved and an exception was created.10 The interest advanced in Quarles was public
6. See, e.g., Innis, 446 U.S. at 309 (Stevens, J., dissenting) (redefining interrogation
and thereby limiting the scope of Miranda); Oregon v. Mathiason, 429 U.S. 492 (1977)
(where suspect, not yet under arrest but detained for half hour at police headquarters
and tricked and questioned into confessing to burglary, held not to be in custody). See
also Miranda, 384 U.S. at 444-45, 479. The constitutional safeguards created in Miranda
provide that "prior to any questioning, a person taken in custody must be warned that
he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney." Id. at 444.
"If he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires .
. .
. But unless and until such warnings and waiver are demonstrated by
the prosecution at trial, no evidence obtained as a result of interrogation can be used
against him." Id. at 479.
7. For Burger Court exceptions to Miranda, see, e.g., California v. Prysock, 453
U.S. 355 (1981) (ambiguous reading of Miranda rights affords sufficient protection); Oregon v. Hass, 420 U.S. 714 (1975) (incriminating statements obtained after a denial of
request for counsel admissible for impeachment purposes); Michigan v. Tucker, 417 U.S.
433 (1974) (Mirandarequirements are mere prophylactic rules and Court is free to balance interests; concluding that incriminating evidence obtained after failure to advise
indigent of rights to appointed counsel is admissible); Harris v. New York, 401 U.S. 222
(1971) (statements obtained without proper Miranda warnings can be used for impeachment purposes).
8. Public safety is capable of such broad interpretation that its scope of application
is potentially limitless. See Quarles, 104 S. Ct. at 2643 n.3 (Marshall, J., dissenting) (no
limitations announced in majority opinion to prevent the public safety exception from
being applied to all custodial interrogations).
9. For cases that illustrate the Court's continued abandonment of the Miranda
holding, see supra note 7. When the Burger Court has been confronted with a Miranda
violation, an exception to Miranda has often resulted. See also Stone, The Miranda Doctrine in the Burger Court, 1977 SuP. CT. REV. 99 (1977), where it is noted that "the Court
has not held a single item of evidence inadmissible on the authority of Miranda." Id. at
10. See, e.g., Michigan v. Tucker, 417 U.S. 433 (1974); Harris v. New York, 401
U.S. 222 (1971).
safety, and hence a "public safety" exception to Miranda emerged, but without factual, precedential, or analytical support.
This Comment will address the majority's unwarranted departure from the usual deferential posture taken by the Court
toward state court findings of fact, a departure necessary solely
to give credibility to an otherwise needless exception. It will go
on to explore perhaps the most crucial defect in the opinion,
namely the majority's unsupported assumption that the Miranda warnings prevent police officers from obtaining information necessary to alleviate a public safety threat.1 As will be illustrated, this assumption ignores the many studies conducted
concerning the effects of the Miranda requirements on the ability of police officers to obtain confessions.1 2 Finally, this Comment will conclude by examining the potential for abuse when,
as a result of this decision, Miranda warnings are rendered optional in certain critical situations.
Origin of the Fifth Amendment Privilege Against SelfIncrimination
The fifth amendment privilege against self-incrimination is
derived from the maxim "nemo tenetur prodere (or accusare)
seipsum-nobody is bound to accuse himself." s The maxim was
developed as a response to the oath ex officio utilized by the
Court of High Commission of England requiring a person under
suspicion for some incident respecting faith or morals to swear
to tell the truth. 4 A refusal to take the oath resulted in a confes11. Quarles, 104 S. Ct. at 2632. The primary purpose advanced by the majority for
the creation of a public safety exception was that Miranda warnings deter suspects from
responding. Id.
12. For studies that demonstrate that Miranda does not impair police ability to
obtain confessions, see infra note 160.
13. Corwin, The Supreme Court's Construction of the Self-Incrimination Clause,
29 MIcH. L. REv. 1, 3 (1930) (discussing the origin of self-incrimination). See also Miranda, 384 U.S. at 442-43 (referring to the historical development of the fifth amendment privilege against self-incrimination).
14. Corwin, supra note 13, at 5-6. See also Note, Developments in the Law- Confessions, 79 HARV. L. REv. 935 (1966) (reviewing the law of confessions from an historical
perspective). In England, the Courts of the Star Chamber and the High Commission
were infamous for their torture-laden practices used to coerce confessions of guilt. Id. at
954. The rationale advanced for the eventual abolishment of the oath and the corresponding abusive practices of the courts was that coerced confessions lack reliability. Id.
[Vol. 6:153
sion of guilt. i 5 By 1688, the maxim was extended to criminal
cases, and the common law rule developed that "henceforth the
mouth of an accused . . . was closed whether for or against
himself."1 6
The common law rule was extended intact to the American
colonies. An accused was excluded from all judicial questioning
and a similar protection was afforded incriminating documents."
Not until the middle of the nineteenth century was an accused
permitted to testify as a witness in federal or state courts."8
Consequently, the common law rule provided the historical
foundation for the application of the fifth amendment privilege
against self-incrimination to pretrial interrogations. Since the
Constitution "did not overrule the common law,"' 9 the fifth
amendment privilege would only have meaning if invoked by a
defendant when he was not immune from questioning.2 Therefore, the fifth amendment was meant to provide protection to a
defendant prior to trial, at a time when he was subject to being
However, "the tests for admissibility were so strictly applied that it is difficult not to
suspect that they were supported by some value in addition to preventing convictions
based on untrustworthy evidence." Id. at 955. For a further discussion of the ex-officio
proceedings and the reform movement which prompted the English courts to abolish the
proceedings and recognize a privilege against self-incrimination, see Pittman, The Colonial and ConstructionalHistory of the Privilege Against Self-Incriminationin America,
21 PA. L. REV. 763, 770-74 (1935).
15. Corwin, supra note 13, at 5-6.
16. Id. at 11.
17. Id.
18. Id. at 12.
19. Id. at 11-12. Professor Corwin proffered the following argument:
Since the [federal and early state] constitutional provisions . . .did not
overrule the common law in excluding an accused from the witness stand, their
stipulation for his immunity by itself becomes pointless. If only, therefore, to
save the framers of these provisions from the charge of having loaded them
with a meaningless tautology, their language had to be given other than its
literal significance.
20. Id. at 12. See also Pittman, supra note 14, at 781 (tracing the formation and
development of privilege against self-incrimination in America). It is suggested that:
if. . .the object [of the privilege was not intended to protect] the accused on
trial . . . [it] could just as well have been intended to protect the accused or
the suspect before trial. It is perhaps relevant that Madison's own state had
had experience with oppressive questioning of suspects by the royal governor
just before the Revolution.
Id. See also Mayers, The Federal Witness' Privilege Against Self-Incrimination: Constitutional or Common Law, 4 AM. J. LEGAL HIST. 107 (1960) (discussing the scope of the
Similarly, history supports the application of a procedure of
warning suspects of their right not to incriminate themselves
and the right to counsel before interrogation. The rule against
self-incrimination was expanded to protect suspects from the
harsh practices of magistrates in England and in colonial
America. 21 These "unscrupulous magistrates" were notorious for
the corrupt techniques they employed to secure incriminating
evidence. 2 ' The oppressive practices of magistrates in England
were eventually abolished as the rule against self-incrimination
became more widely accepted.2 3 The practice of coercing the accused into supplying incriminating evidence was gradually replaced with the practice of informing the accused of his right not
to incriminate himself coupled with the right to have counsel
present during the examination.24
In early colonial America, as in England, similar modes of
interrogation were commonly performed by magistrates.25 The
demise of judicial interrogation practices in England was paralleled in this country by constitutional recognition of the privilege against self-incrimination. 26 However, interrogation did not
cease. 27 With the emergence of a modern police force, the police
21. Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 MIcH. L. REV. 1224, 1232 (1932). Before formal police organizations were developed, magistrates performed all investigatory functions. Id. at 1232. Under the statutes
of Philip and Mary (1554-55), a legalized system of investigation developed in England,
authorizing magistrates to "take the examination" of the accused and provide a detailed
writing of the information obtained for use at trial. Id. Characteristic of the examination
process was the prolonged detention and questioning of the accused. Id.
22. See Kauper, supra note 21, at 1233, where it is noted that the practices employed by the magistrates would be preferred to some modern police practices; they did
not use torture as a routine means of obtaining evidence. Id. See, e.g., Brown v. Mississippi, 297 U.S. 278 (1936) (defendants beaten with steel studded belts by police to obtain
confessions); People v. Portelli, 15 N.Y.2d 235, 205 N.E.2d 857, 257 N.Y.S.2d 931 (1968)
(witness burned with cigarette butts and beaten in effort by police to obtain incriminating evidence).
23. See Kauper, supra note 21, at 1234 (beginning of eighteenth century Parliament repealed statutes of Philip and Mary and police took over interrogation function).
See also Pittman, supra note 14, at 773-74 (abolishment of forced self-incrimination ordered by reform movement and acceptance of the privilege as customary law).
24. Kauper, supra note 21, at 1236. In the United States, all judicial inquisitorial
preliminary examination disappeared by 1851. Id.
25. Id. at 1235.
26. Id. at 1235-36.
27. Id. at 1224.
[Vol. 6:153
assumed the role of interrogators.2"
In a long awaited effort to curtail the abusive practices employed by the police, the Mallory rule was created.2 9 Under the
Mallory rule, any evidence obtained in violation of Rule 5(a) of
the Federal Rules of Criminal Procedure was to be excluded
from evidence at trial.30 In federal proceedings, the police were
required to bring the accused to the magistrate "without unnec28. Id. at 1234.
29. In Mallory v. United States, 354 U.S. 449 (1957), the Court set forth the Mallory rule, referred to as the judicial interpretation of Rule 5(a) of the Federal Rules of
Criminal Procedure. Mallory, 354 U.S. at 450. In Mallory, the defendant was apprehended for suspicion of rape, brought to the police station and interrogated for four and
one half hours until a signed confession was obtained. Id. at 451. He was not brought
before the commissioner until the morning after questioning was conducted. Id. The
signed confession was admitted at trial. Id. Rule 5(a) provides that an arresting officer
must take the suspect "without unnecessary delay" before the commissioner. FED. R.
CRIM. P. 5(a). The Court held that Rule 5(a) prohibits police officers from interrogating a
suspect for the purpose of obtaining a confession at any time prior to arraignment. Mallory, 354 U.S. at 455. The policies underlying the Federal Rule, as set forth in McNabb
v. United States, 318 U.S. 332, 343-44 (1943), were aimed at avoiding "all the evil implications of secret interrogation of persons accused of crime." Id. at 344. Further, Rule
5(b), which closely parallels the Miranda holding if one substitutes the word "police" for
"commissioner," sets forth the function served by the prompt arraignment requirement.
Under Rule 5(b) the commissioner is required to inform the defendant of his right to
remain silent, right to counsel and the right to be notified of all charges against him. FED.
R. CRiM. P. 5(b).
30. Mallory, 354 U.S. at 454-55. Justice Frankfurter, writing for the majority in
Mallory, recognized that the police were prone to engage in the same "intensive interrogation" practices once associated with magistrates. Id. at 453. Detention for the purpose
of obtaining incriminating evidence tempted police to subject the suspect to the evils of
the "third degree." Id. For a discussion of the harsh practices employed by the magistrates, see Kauper, supra note 21, at 1232-33. The exclusionary rule announced in Mallory was an effort to deter police from such practices. For authority criticizing the failure
to invoke the privilege against self-incrimination to abolish police interrogation, see
Kamisar, A Dissent From the Miranda Dissents: Some Comments on the "New" Fifth
Amendment and the Old "Voluntariness" Test, 65 MICH. L. REV. 59 (1966). The author
argued that "'if the police are permitted to interrogate an accused under the pressure of
compulsory detention to secure a confession ... they are doing the very same acts which
historically the judiciary was doing in the seventeenth century but which the privilege
against self-incrimination abolished."' Id. at 73-74 (quoting BEISEL,
also Saltzburg, Forward:The Flow and Ebb of ConstitutionalCriminalProcedurein the
Warren and Burger Courts, 69 GEO. L.J. 151 (1980) (providing support for the argument
that police action, like that of magistrates, should be governed by the privilege against
self-incrimination). Professor Saltzburg reasoned that any demand upon a suspect to answer questions while in custody pursuant to legal or judicial authority, i.e. police, judicial
order, constitutes legal compulsion, specifically prohibited by the fifth amendment. Id. at
essary delay" 1 so that the magistrate could fully apprise the individual of his constitutional rights."2 However, the Mallory rule
was only a "judicial rule of evidence""9 as opposed to a constitutionally mandated right or procedure.3 4 The rule lacked the constitutional basis necessary to prohibit Congress from overruling
6 and has
it."3 This constitutional basis was supplied by Miranda"
31. Mallory, 354 U.S. at 455. The Court stated that any "delay must not be of the
nature to give opportunity for the extraction of a confession." Id.
32. Id. at 454-55.
CRIMINAL CASES 262 (1973)).
CRIMINAL CASES 262 (1973)).
35. The Mallory rule was subject to congressional alteration which Congress incorporated into legislation enacted one year after the Miranda decision. See 18 U.S.C. §
3501(c) (1982).
Section 3501(c) provides in pertinent part:
[A] confession. . . shall not be inadmissible solely because of delay in bringing
such person before a magistrate. . . if such a confession is found by the trial
judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person
within six hours immediately following his arrest or other detention.
Id. See also 18 U.S.C. § 3501(b) (1982) (voluntariness of confession determined by the
totality of the circumstances).
For a view of § 3501's impact on Miranda, see POLLACK, supra note 1, at 268-69
(1979). The "voluntary" confession standard for admissibility stated in § 3501 is only
applicable to federal courts. State courts are still bound by Miranda. POLLACK, supra
note 1, at 269. See also WHITEBREAD, supra note 33, at 326. Professor Whitebread referred to a separation of powers argument as a basis for declaring congressional legislation contrary to Miranda unconstitutional and warned federal judges to refrain from
relying on § 3501(b). WHITEBREAD, supra note 33, at 326 (quoting B. GEORGE, CONSTrruTIONAL LIMITATIONS ON EVIDENCE IN CRIMINAL CASES 319 (1973)). Other commentators
have also noted that the drafters of § 3501 ignored the constitutional basis of and recognition afforded Miranda. See, e.g., Schrock, supra note 1, at 56 (Mirandarequired by
the fifth amendment as a necessary demonstration of governmental respect for citizens).
See also Gandara, Admissibility of Confessions in Federal Prosecutions:Implementation of Section 3501 by Law Enforcement Officials and the Courts, 63 GEO. L.J. 305, 313
(1974) (indicating that as a general rule most federal judges have been reluctant to apply
the statute). Numerous cases demonstrate federal court loyalty to Miranda and a refusal
to recognize § 3501. See, e.g., United States v. Vigo, 487 F.2d 295 (2d Cir. 1973) (statements held voluntary under requirements of Miranda); Ailworth v. United States, 448
F.2d 439 (9th Cir. 1971) (held statements voluntary on authority of Miranda and refused
to apply § 3501); Lamia v. United States, 429 F.2d 373 (2d Cir.), cert. denied, 400 U.S.
907 (1970) (confessions admissible if proper Miranda warnings given); United States v.
Dickerson, 413 F.2d 1111 (7th Cir. 1969) (statements obtained during investigation are
involuntary solely under authority of Miranda).
36. Miranda, 384 U.S. at 478 (1966).
[Vol. 6:153
contributed to the rule's continued existence."'
B. Miranda and the Fifth Amendment
The right to be informed of one's constitutional rights, once
taken into custody and prior to any interrogation, achieved
constitutional status in Miranda v. Arizona. In Miranda, the
Court reversed the conviction of three defendants and affirmed
the reversal of another where the convictions were, in part, attributed to involuntary confessions admitted at trial. 9 The
Court held that failure of the officials to advise the defendants
of certain rights deprived the defendants of the fifth amendment
protection now afforded individuals in this context, and it was a
violation of the privilege against self-incrimination for the prose40
cution to benefit from the resulting confessions.
Prior to Miranda's introduction of the fifth amendment
privilege against self-incrimination to police interrogations, the
admissibility of coerced confessions in state court proceedings
was governed by the fourteenth amendment due process
clause.41 Under the due process standard, the Court focused on
37. Id. at 476. (Miranda requirement of a warning is fundamental to the fifth
amendment). See Schrock, supra note 1, at 18 (any congressional action that impairs
Miranda's constitutional basis is unconstitutional).
38. 384 U.S. 436 (1966).
39. Id. at 491. Miranda incorporated four companion cases. See State v. Miranda,
98 Ariz. 18, 401 P.2d 721 (1965) (defendant confessed to rape after being detained and
questioned for two hours without being informed of right to remain silent and right to
counsel); People v. Vignera, 15 N.Y.2d 970, 207 N.E.2d 527, 259 N.Y.S.2d 857 (1965)
(where a confession to robbery obtained after prolonged detention and questioning,
deemed valid). See also Westover v. United States, 342 F.2d 684 (9th Cir. 1965) (where
defendant interrogated by police for twelve hours then two hours by FBI, confession
obtained by FBI valid since FBI gave some warnings); People v. Stewart, 62 Cal. 2d 571,
43 Cal. Rptr. 201, 400 P.2d 97 (1965) (reversed robbery and murder conviction where
conviction based on confession obtained after nine days of detention and periodic
40. Miranda, 384 U.S. at 440, 479. For a statement of the Miranda warnings, see
supra note 6.
41. See, e.g., Rogers v. Richmond, 365 U.S. 534 (1961). In Rogers, the Court held
that the due process clause required that confessions be given voluntarily without police
action that would "over bear the petitioner's will to resist and bring about confessions
not freely self-determined." Id. at 544. See also Brown v. Mississippi, 297 U.S. 278
(1936), where the Court held coerced confessions to be unreliable and a denial of due
process if used at trial. Id. at 286. For a discussion of the voluntariness test of the due
process approach to coerced confessions, see Schrock, supra note 1, at 35. In Watts v.
Indiana, 338 U.S. 49 (1949), the defendant was detained for six days for suspicion of
murder. The defendant was held without arraignment, benefit of counsel and without
two distinct inquiries. Each inquiry corresponded to a "constitution good"4 which the Court determined the due process clause
was designed to protect.
Initially, the Court expressed concern for the fairness of the
trial process,4" the central issue being whether the confession
was reliable."' The due process clause was viewed as a vehicle for
the exclusion of untrustworthy and unreliable evidence, since coerced confessions usually were false and their admissibility
would violate the right to a fair trial.45
The Court shifted its inquiry from reliability to voluntariness and free will, recognizing that the evil associated with involuntary confessions was not found in their inherent untrustworthiness, but rather stemmed from the coercive methods used to
obtain them.4 6 The due process clause protected the individual's
right to be free from police action that would "overbear [his]
will to resist. ' 47 The Court stated that all evidence must be the
being advised of his constitutional rights until he confessed to the murder. Id. at 53. The
confession was admitted into evidence at trial and a conviction resulted. Id. at 50. The
Court held that the confession was not properly admitted since it was not "voluntary,"
i.e., the product of free and rational choice, as is required by the due process clause of
the fourteenth amendment. Id. at 53.
42. For an analysis of these "constitutional goods," see Schrock, supra note 1, at
19. The authors identified three constitutional goods: fairness of the trial, eliminating
coercion and providing information to a suspect from which to make a knowledgeable
choice between silence and confusion. Each good represented a different concern advanced by the Court during the development of the law of confessions as to what the law
was designed to protect. Id.
43. See, e.g., Brown, 297 U.S. at 286.
44. Id.
45. See Stein v. New York, 346 U.S. 156, 182 (1952) (coerced confessions must be
excluded because they are "too untrustworthy to be received as evidence of guilt").
46. See, e.g., Chambers v. Florida, 309 U.S. 227 (1940).
47. Rogers, 365 U.S. at 544. In Rogers, the Court reversed a murder conviction
based on a coerced confession, holding that free will and not reliability determined the
voluntariness of a confession. Id. Justice Frankfurter presented his often cited argument
for applying the fourteenth amendment to coerced confession cases:
[T]he admission into evidence of confessions which are involuntary, i.e., the
product of coercion, either physical or psychological, cannot stand. This is so
not because such confessions are unlikely to be true, but because the methods
used to extract them offend an underlying principle in the enforcement of our
criminal law: that ours is an accusatorial and not an inquisitorial system-a
system in which the State must establish guilt by evidence independently and
freely secured and may not by coercion prove its charge against an accused out
of his own mouth.
Id. at 540-41. For a discussion suggesting that this voluntariness test does not provide
sufficient constitutional protection, see Schrock, supra note 1, at 35, 42. The authors
[Vol. 6:153
product of free will, otherwise the prosecution would be permitted to establish guilt by use of coercion. This was determined to
be a constitutionally impermissible means of securing a conviction. 8
The test applied by the Court under the due process approach was whether, upon consideration of the "totality of the
circumstances, '4 the suspect had voluntarily confessed50 However, this standard resulted in inconsistent decisions due to the
courts' inability to formulate a precise definition of the term
"voluntary." 1
The fifth amendment privilege against self-incrimination
presented a discussion of the law of confessions and the various views the Court, Congress and commentators have advanced regarding the role of the Constitution in defining
standards for the admissibility of confessions. Id. at 4-15. The authors agreed with this
due process approach objective which recognized the constitutional importance of free
and rationale choice, but argued that to make this type of rational choice, more is required. In the authors' view, nothing short of the Miranda warnings would provide adequate constitutional support for the suspect. Id. Under the "totality of the circumstances" test the courts viewed "the warnings as, at most, one of those circumstances."
Id. at 35. The authors believed that whether the warnings were given should be the only
factor considered in determining whether a confession was voluntary. Id. at 53.
48. See Rogers, 365 U.S. at 541.
49. See Fikes v. Alabama, 352 U.S. 191 (1957). In Fikes, a ten day interrogation
which involved intense questioning by police officers, resulting in a written confession,
was held to be a denial of due process. Id. at 197. The Court examined the facts which
surrounded the interrogation, and characteristics of the defendant, in particular, the Negro defendant's minimal education, mental incompetency and prolonged detention and
interrogation in an isolated unit of prison. Id. The Court concluded that the "totality of
the circumstances that preceded the confession in this case goes beyond the allowable
limits." Id. See also Greenwald v. Wisconsin, 390 U.S. 519 (1968) (where defendant did
not receive food, medication, sleep, Miranda rights, or requested counsel, confession
deemed involuntary under totality of circumstances test).
50. Greenwald, 390 U.S. at 519.
51. See Miranda,384 U.S. at 507 (Harlan, J., dissenting). "While the voluntariness
rubric was repeated in many instances, the Court never pinned it down to a single meaning but on the contrary infused it with a number of different values." Id. (citation omitted). See also Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to
Counsel: Basic Problems and Possible Legislative Solutions, 66 COLUM. L. REV. 62 (1966)
(recognizing confusion in case law); Kamisar, supra note 30, at 62 (referring to the protection afforded under the voluntariness-totality of the circumstances standard as "illusory"); Schrock, supra note 1, at 35 (criticizing the case-by-case method of the voluntariness approach). For cases illustrating the lengthy, in-depth factual inquiries the Court
performed to determine whether a confession was "voluntary," see Townsend v. Saln,
372 U.S. 293 (1963) (confession made while under the influence of truth serum not the
product of free intellect); Culombe v. Connecticut, 367 U.S. 568 (1961) (voluntariness
issue is a three part test combining historic and psychological facts applied to legal standards); Lisenba v. California, 314 U.S. 219 (1941), reh'g denied, 315 U.S. 826 (1942) (in
absence of threats or violence, confession made after intense questioning held voluntary).
has governed the admissibility of confessions in federal proceedings since 1897.2 However, not until 1964, in Malloy v. Hogan,58
was the privilege against self-incrimination incorporated into the
fourteenth amendment and made applicable to the states. Chief
Justice Warren took advantage of the opportunity Malloy afforded and applied fifth amendment protection to a situation in
which state deprivations of individual's constitutional rights
were common-during police interrogations. 5 Chief Justice
Warren believed that "if government was going to deprive some
of its citizens of their liberty and their humanity, it was at least
going to effectuate that deprivation fairly. '55 Under Miranda, a
"fair" deprivation and its resulting requirements can be characterized as a trade off. 56 Where the police fail to inform a suspect
held in custody of his constitutional rights prior to interrogating
him, the suspect is deprived of an opportunity to exercise his
rights.57 Therefore, the prosecution forfeits the use at trial of
52. Bram v. United States, 168 U.S. 532 (1897) (the privilege against self-incrimination was a "crystalization" of the common law confession rule). For a discussion of the
relationship between the privilege against self-incrimination and the common law confession rule, see Sunderland, supra note 1, at 186-87.
53. 378 U.S. 1 (1964).
54. Miranda, 384 U.S. at 465. In Miranda, the Court viewed all police interrogations as impairing a suspect's ability to think rationally. Chief Justice Warren perceived
the privilege against self-incrimination as embodying "the respect a government ...
must accord to the dignity and integrity of its citizens." Id. at 460. Prior to Miranda, the
sixth amendment guarantee of the right to the assistance of counsel, as well as the fourteenth amendment, was invoked to find coerced confessions obtained by the police inadmissible at trial. See, e.g., Escobedo v. Illinois, 378 U.S. 478 (1964). In Escobedo, the
Supreme Court held that once the police interrogation focuses on a particular suspect,
denial of the "guiding hand of counsel" and failure to inform the suspect of his constitutional right to remain silent violates the sixth amendment. Id. at 486, 490-91. See also
Gideon v. Wainwright, 372 U.S. 335 (1963) (sixth amendment right to counsel made applicable to the states through the fourteenth amendment).
55. White, Earl Warren as Jurist,67 VA. L. REv. 461, 516 (1981). The author discusses Chief Justice Warren's ethical perspective concerning government intrusion on
individual rights. See also Spano v. New York, 360 U.S. 315 (1959). In Spano, Chief
Justice Warren declared that the illegal methods used by police to extract confessions
pose as much a threat to life and liberty as the criminals they are trying to convict. Id. at
56. See Quarles, 104 S. Ct. at 2636 (O'Connor, J., concurring in part and dissenting
in part).
57. For a statement of the Miranda requirements, see supra note 6. Miranda provides that the warning must be administered or knowingly and intelligently waived for a
suspect to have been afforded full constitutional protection. Id. at 478-79. The requirements become operative once a suspect is taken into custody. Custodial interrogation
was defined by the Court as "questioning initiated by law enforcement officers after a
[Vol. 6:153
any incriminating evidence 5 obtained during that interrogation. 9 Thus, the Supreme Court viewed the administration of
Miranda warnings as a constitutional prerequisite for the prosecutor to be able to use incriminating evidence at trial.6 0
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way." Id. at 444 (footnote omitted). See also Escobedo, 378 U.S. at 490-91.
The definition of "custodial interrogation" in Miranda had a similar meaning in Escobedo where the Court used the phrase "investigation ... focus[ing] on a particular suspect." Id. at 490.
58. Miranda, 384 U.S. at 443. Under Miranda, a failure to follow these guidelines
meant that "no evidence" has been relied on to support the argument that the "fruit of
the poisonous tree" doctrine was applicable to Miranda violations. See, e.g., Michigan v.
Tucker, 417 U.S. 433, 464 (1974) (Douglas, J., dissenting) (Miranda requires that the
"fruits" be excluded). The doctrine was originally developed in Weeks v. United States,
232 U.S. 383 (1914) (books and records that were the product of an illegal search suppressed). See also Wong Sun v. United States, 371 U.S. 471 (1963) (evidence derived
from the "fruit" of an unlawful entry and arrest excluded); Nardone v. United States,
308 U.S. 341 (1939) (information obtained through an illegal wire tapping excluded unless the connection became so attenuated as to dissipate the taint); Silverthorne Lumber
Co. v. United States, 251 U.S. 385 (1919) (evidence derived from a fourth amendment
violation must be suppressed).
Since its inception, the doctrine has been applied to constitutional violations other
than violations of the fourth amendment. See, e.g., United States v. Wade, 388 U.S. 218
(1967) ("fruit of the poisonous tree" doctrine applied to sixth amendment violation);
Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52 (1964) (doctrine applied to fifth amendment violation). For a discussion of the "fruits of the poisonous tree"
doctrine and Miranda, see Pitler, "Fruit of the Poisonous Tree": Revisited and
Shepardized, 56 CALiF. L. Rav. 579 (1968) (where confession obtained without the required warnings, fruits of confession should be excluded). The "poisonous tree" consisted
of the evidence initially obtained through the illegal act, and all evidence derived from
the illegally obtained evidence constituted the "fruit." Id. at 581. The doctrine required
the suppression of all evidence obtained after an unlawful government action because
the evidence was tainted "fruit" of such action.
The Court has recently made an exception to the doctrine. See Nix v. Williams, 104
S. Ct. 2501 (1984) (inevitable discovery exception-fruits of illegally seized evidence admissible if would have been discovered through a legal search).
59. A Miranda violation exists when the following two questions are answered in
the affirmative: (1) whether the suspect was in custody, and (2) whether the suspect was
subject to questioning and did not waive his Miranda rights before responding. Miranda,
384 U.S. at 478-79. The Court has succeeded in minimizing the difficulties courts have
had in the past when attempting to apply the due process standard to confession cases.
For a discussion of the courts' difficult task of determining whether a confession was
voluntary under the due process test, see supra note 51 and accompanying text.
60. Miranda, 384 U.S. at 467. See also Schrock, supra note 1, at 14-15 (core policy
of the privilege is free and rational choice between silence and confession). However, in
Miranda, the Court preserved for Congress and the states the opportunity to develop
alternative means that would as effectively protect the individual from fifth amendment
deprivations. Miranda, 384 U.S. at 467. It is important to note that the Burger Court has
interpreted the possibility for alternatives as an admission by the Miranda Court that
the right to a warning is not constitutionally required. See, e.g., Michigan v. Tucker, 417
The privilege against self-incrimination prohibits the use of
compelled statements."' By definition, interrogation involves
"inherently compelling pressures." 2 To ensure that the statements were voluntary, and not compelled, the police were required to obtain a waiver from the suspect in order to use the
statements at trial.63 This requirement was necessary to deter
the abusive practices that police were prone to commit when obtaining evidence was given priority over the protection of individual rights." By invoking the Constitution to support deterrence, the Court helped to ensure that giving priority to
U.S. 433 (1974) (Miranda only set forth procedural safeguards and requirement of a
warning was not a constitutional right); Monaghan, The Supreme Court 1974
Term-Forward:Constitutional Common Law, 89 HARv. L. REV. 1, 20-21 n.12, 42 n.217
(1975) (Miranda requirements are mere prophylactic rules, not constitutional commands). However, as some commentators have argued, those critics who find Miranda
not constitutionally required are mistaken and do not understand the purpose of Miranda. See Schrock, supra note 1, at 15. Chief Justice Warren inserted the possibility of
alternatives in part to disarm the critics of the Warren Court's activism who accused the
Court of putting the other branches of government in a "constitutional straight jacket."
Id. at 17. The word alternatives was not meant to be used as an invitation for subconstitutional interpretation of Miranda. Id. at 14. See also R FUNSTON, CONsTrruTTiONAL
COUNTERREVOLUTION 300 (1977). Chief Justice Warren considered the warnings to be a
constitutional right in itself; otherwise the Court would be without the power to impose
Miranda on the states. Id. Therefore, it can be argued that, as in all instances where a
fundamental constitutional right is involved, the action attempting to infringe on that
right must be by the "least restrictive means." See, e.g., J. NowAK, R ROTUNDA & J.
YOUNG, CONSTITUTIONAL LAW 382-83 (1978). Although the "least restrictive means" test is
a judicial standard of review for state executive, legislative or administrative action,
there is authority to support the argument that court action should be held to the same
standard. See, e.g., Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175
(1969) (applying a first amendment judicial review standard of state action when reviewing a state court order). Court action, like state legislative action, can be held unconstitutional. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948) (court enforcement of unconstitutional restrictive covenant violates due process). The key word in this particular part of
the Miranda decision is "alternative," not exception. Therefore, under the Court's own
least restrictive means standard, any exception to Miranda would be unconstitutional,
especially a public safety exception that may have the effect of constructively overruling
61. Miranda, 384 U.S. at 467.
62. Id. See also Schrock, supra note 1, at 42-43. Informing the suspect of his right
to remain silent is "an absolute prerequisite in overcoming the inherent pressures of the
interrogation atmosphere." Id. at 43. See White, supra note 55, at 523. Chief Justice
Warren viewed all interrogations as inherently coercive and believed the warnings and
waiver requirements were necessary to minimize coercive interrogation practices and
provide disadvantaged suspects with the knowledge and power to exercise their rights.
63. Miranda, 384 U.S. at 475-76.
64. Id. See also White, supra note 55, at 531; Schrock, supra note 1, at 41-42.
protecting suspects from constitutionally-abusive
would become common practice.6 5
[Vol. 6:153
Post-Miranda Developments: The Burger Court Exceptions
The Burger Court has continually failed to give full constitutional effect to Miranda.6 In the last decade, the Court has
pursued a course of exception-making, resulting in decisions directed at preserving state oriented interests.6 7
The case of Harris v. New York 6" triggered a wave of exceptions directed at the Miranda requirements. In Harris, the
Court permitted statements obtained in violation of Miranda to
be admitted for impeachment purposes.6 9 The most striking
blow to Miranda, however, occurred in Michigan v. Tucker
where the Court described the Miranda requirements as mere
"prophylactic" rules. 71 This marked a substantial departure
from the constitutionally based definition that the Warren Court
had assigned to the requirements. In Tucker, the Court held
65. See supra text accompanying notes 33-35, suggesting that a constitutionally
based holding in Miranda was necessary to avoid congressional abdication, as was the
fate of the Court's decision in Mallory v. United States, 354 U.S. 449 (1957). For a discussion of the Mallory rule and its eventual demise, see supra text accompanying notes
66. See generally The Supreme Court 1970 Term, 85 HARv. L. REV. 3, (1971) [hereinafter cited as 1970 Term]. In referring to Harris v. New York, 40 U.S. 222 (1971), and
the impeachment exception to Miranda, the author stated that the "willingness of the
[Burger] Court to retreat from Miranda suggests that. : . the Court will abandon Miranda altogether." 1970 Term, supra, at 44. See also Stone, supra note 9, at 100. The
author noted that "the Court has not held a single item of evidence inadmissible on the
authority of Miranda." Id.
67. See White, supra note 55, at 519, 523. Chief Justice Warren viewed confession
cases as symbolizing the coercive power of the state, and the Miranda decision was the
Court's attempt to place the suspect, police and prosecutor on an "equal footing." Id. at
68. 401 U.S. 222 (1971) (failure to warn of right to appointed counsel does not
preclude use of statement to impeach defendant's testimony).
69. Id. at 224. See also 1970 Term, supra note 66, at 52, where the author depicted
Harris as the clearest expression of "a fundamental hostility to Miranda." Id.
70. 417 U.S. 433 (1974). For further discussion of Tucker, see infra notes 71-73 and
accompanying text.
71. Id. at 444. For authority to support a reduction of Miranda to a "prophylactic"
rule, see Monaghan, supra note 60, at 20-21. Professor Monaghan viewed Miranda as not
explicitly required by the Constitution, characterizing the Miranda warnings as mere
"prophylactic" rules, subject to congressional or judicial abandonment. Id. at 21 n.112.
But see Schrock, supra note 1, at 13-14 (criticizing Monaghan's failure to give Mirandaa
constitutional reading).
that a witness, whose identity was disclosed by the defendant's
statements without informing the defendant of his Miranda
rights, can provide incriminating testimony against the defendant.721 By eroding the constitutional underpinnings of Miranda,
the Court was free to balance the deterrent effect of Miranda
against the states' need for interrogation.
The fourth amendment prohibition against unreasonable
search and seizure has been continuously subjected to attack by
the Burger Court.74 However, as the Court readily admitted,
"the Fifth Amendment's strictures, unlike the Fourth's, are not
removed by showing reasonableness. 75 The fifth amendment7 6requires the exclusion of evidence obtained under compulsion.
is, therefore, unconstitutional to make an exception where the
language of the fifth amendment affords no room for an exception.
The exceptions to Miranda flowed inevitably from the Burger Court's redefinition of the criteria necessary to trigger the
Miranda requirements. In Rhode Island v. Innis,77 the Court
72. Tucker, 417 U.S. at 450-51.
73. Id. at 450. In Miranda, the Court refused to balance the fifth amendment
against society's need for interrogation, and explicitly proscribed such a practice. Miranda, 384 U.S. at 479.
74. Most of the Court's exceptions have been directed at the fourth amendment
exclusionary rule. See United States v. Leon, 104 S. Ct. 3405 (1984) (reasonable reliance
exception); United States v. Lopez-Mendoza, 104 S. Ct. 3479 (1984) (evidence seized after unlawful arrest admissible in deportation hearing); Nix v. Williams, 104 S. Ct. 2501
(1984) (inevitable discovery exception); United States v. Havens, 446 U.S. 620 (1980)
(illegally seized evidence allowed to be used for impeachment purposes); Stone v. Powell,
428 U.S. 465 (1976) (where state provided a full and fair opportunity to litigate a fourth
amendment claim, a state prisoner could not get federal habeas corpus relief claiming
that illegally seized evidence was introduced at trial); United States v. Calandra, 414
U.S. 338 (1974) (witness summoned before a grand jury may not decline to answer questions on ground that questions are based on fruits of unlawful search).
75. Fisher v. United States, 425 U.S. 391, 400 (1976). An "exigency" exception can
only be applied to the fourth amendment, and not to the fifth amendment because the
fourth amendment is subject to a reasonableness test. See Mincey v. Arizona, 437 U.S.
385 (1978); McDonald v. United States, 335 U.S. 451 (1948). The Court created an exception to the fourth amendment warrant requirement when the "exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment." Mincey, 437 U.S. at 394.
76. Miranda, 384 U.S. at 462 (citing Wan v. United States, 266 U.S. 1, 14-15
(1924)) (fifth amendment required that a confession obtained after prolonged questioning and detention must be excluded from evidence); Burton v. United States, 391 U.S.
123 (1968) (the Constitution mandates the exclusion of coerced confessions in terms of a
confrontation right).
77. 446 U.S. 291 (1980).
[Vol. 6:153
redefined interrogation to include "either express questioning or
its functional equivalent, 7 8 including "any words or actions on
the part of the police officers (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."' 79 Under this new definition, whether an interrogation
existed is determined by objectively assessing the effect of the
police officer's conduct on a suspect in a similar situation."0 In
Innis, police officers arrested the defendant for suspicion of robbery and he was informed of his Miranda rights.8 1 The defendant was not armed at the time of arrest.8 1 While driving the
suspect to the police station, the officers discussed between
themselves the danger posed by a missing weapon should nearby
handicapped children discover it.8s The defendant then directed
the officers to where the gun was hidden.8 4 The gun was admitted as evidence at trial and the defendant was convicted of robbery, kidnapping and murder. 5 The Court held that the conversation was not interrogation."
As the cases suggest, the Miranda doctrine has taken on a
new meaning since its creation, viewed more as a hindrance to
police than a protection of individual rights. Thus, this was the
78. Id. at 300-01. In Miranda, interrogation was defined as any questioning initiated by police officers once the individual's freedom was restrained. Miranda,384 U.S. at
79. Innis, 446 U.S. at 302. In Miranda, the police officer's reason for asking the
question or whether the police officer's statements were posed in the form of a question
had no bearing on the interrogation issue. Miranda, 384 U.S. at 444. Once an "investigation focused on an individual," a custodial interrogation was present and the warnings
would have to be administered. Miranda, 384 U.S. at 444 n.4.
80. Innis, 446 U.S. at 305. (Marshall J., dissenting).
81. Id. at 294.
82. Id.
83. Id. at 294-95. At least in Innis, a public safety threat arguably existed. The
public safety threat in Quarles, however, was doubtful. For a discussion of Innis, see
infra note 152.
84. Innis, 446 U.S. at 295.
85. Id.
86. Id. at 302. Justice Stevens criticized the majority for departing from the Miranda definition of interrogation, i.e., "any statements likely to elicit an incriminating
response." Id. at 313 (Stevens, J., dissenting). He characterized the decision in Innis as
giving police "free[dom] to exert that [psychological] pressure on [the defendant] despite
his request for counsel, so long as they don't end their statements with question marks."
Id. Although the concurrence viewed the decision as being consistent with Miranda, it
recognized the unclarity it would create. Id. at 304 (Burger, C.J., concurring).
status of Miranda when the Court confronted it in Quarles and
created a public safety exception."7
Facts and Lower Court Proceedings
On September 11, 1980, at 12:30 a.m., two police officers,
Officer Kraft and his partner, were on patrol when they were
approached by a woman claiming to have just been raped." The
woman described her assailant as a black man, approximately
six feet tall, wearing a black jacket with the words "Big Ben"
written in yellow letters on the back, and informed them that he
was also carrying a gun."9 She told the officers that her assailant
had just entered a supermarket, and directed them to a nearby
A&P.90 One officer proceeded to radio for assistance while Officer Kraft approached the store." At least two other officers
had arrived on the scene before Officer Kraft entered the
supermarket. 2
When Officer Kraft spotted Quarles at the checkout
counter, Quarles turned and ran up the aisle toward the rear of
the store.9 3 Officer Kraft and three other officers, with weapons
drawn, proceeded to chase after Quarles. 4 After losing sight of
him for a few seconds, the officers located the suspect and surrounded him.9 5 Officer Kraft ordered Quarles to put his hands
over his head and frisked him96 "[a]s the other officers trained
their guns on the suspect.
Officer Kraft discovered that
Quarles was wearing an empty shoulder holster and proceeded
to handcuff Quarles' hands behind his back.98 The other officers
withdrew their guns, satisfied that the situation was "definitely
87. Quarles, 104 S. Ct. at 2632.
88. Id. at 2629.
89. Id.
90. Id.
91. Id.
92. Id. at 2642 (Marshall, J., dissenting).
93. Id. at 2629.
94. Id.
95. Id. at 2629-30. Testimony given at the suppression hearing contained an admission by Officer Kraft that the officers "in essence surrounded him."
96. Id. at 2630.
97. Id. at 2642 (Marshall, J., dissenting).
98. Id.
[Vol. 6:153
under control."9 9
Officer Kraft then proceeded to question Quarles, inquiring,
"Where is the gun?"' o Quarles nodded in the direction of a
stack of cartons a few feet away and responded, "The gun is
over there."1 0 1 Officer Kraft reached into the carton and recovered a loaded gun. 10° Officer Kraft informed Quarles that he was
under arrest and administered the Miranda rights, reading from
a printed card."0 3 Quarles agreed to answer questions without an
attorney present. 0 4
Quarles was indicted for criminal possession of a weapon. 10 5
Quarles moved to suppress the statement "The gun is over
there," the gun, 06 and all "tainted" evidence obtained after the
Miranda warnings had been given. 0 7 The trial court, relying on
Miranda, granted Quarles' motion to suppress.1 08 On appeal, the
state argued for the first time in favor of an "emergency excep0 9 The intermediate appellate court rejected
tion" to Miranda.1
the argument and unanimously affirmed the trial court's suppression order.1
The New York Court of Appeals affirmed the lower courts'
decisions, paying particular attention to the public safety threat
that the state contended existed."1 This court refused to recognize a public safety exception to Miranda since "there [was] no
evidence in the record . . . that there were exigent circumstances posing a risk to the public safety or that the police inter99. Brief for Respondent at 9, People v. Quarles, 58 N.Y.2d 664, 444 N.E.2d 984,
458 N.Y.S.2d 520 (1982) (mem.).
100. Quarles, 104 S. Ct. at 2630.
101. Id.
102. Id.
103. Id.
104. Id.
105. Id. The rape charge was not pursued. Id. at 2630 n.2.
106. Id. at 2630.
107. Id. For a discussion of the exclusion of "tainted" or derivative evidence, see
supra note 58.
108. Quarles, 104 S. Ct. at 2630.
109. People v. Quarles, 58 N.Y.2d 664, 666, 444 N.E.2d 984, 985, 458 N.Y.S.2d 520,
521-22 (1982) (mem.). It appears from the record that the state did not raise the "emergency exception" argument at the suppression hearing.
110. People v. Quarles, 85 A.D.2d 936, 447 N.Y.S.2d 84 (1981).
111. People v. Quarles, 58 N.Y.2d 664, 666, 444 N.E,2d 984, 985, 458 N.Y.S.2d 520,
521 (1982) (mem.) (both of the lower courts with fact-finding jurisdiction failed to find
that the police were concerned with public safety).
rogation was prompted by any such concern."' 2 Further, the
testimony of Officer Kraft that "the situation was under control"
would have contradicted such a conclusion.11 3
The Opinion
1. Majority
In a five to four decision, the Supreme Court reversed the
New York Court of Appeals. " 4 Justice Rehnquist, writing for
the majority, found that a danger to public safety existed." 5 The
majority followed its former interpretation of Miranda and rejected the inherently coercive definition of interrogation announced in that case."' The Court proceeded to reinstate the
old voluntariness approach to determine whether the interrogation was compelled." 7 The majority, however, did not analyze
the facts under the voluntariness test because the respondent
failed to assert that his statements were "compelled by police
conduct which overcame his will to resist."" 8 The only issue the
majority addressed was "whether Officer Kraft was justified in
failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-in112. Id.
113. Id. See also Quarles, 104 S. Ct. at 2643 (Marshall, J., dissenting) (quoting
Brief for Appellant at 11, People v. Quarles, 58 N.Y.2d 664, 444 N.E.2d 984, 458
N.Y.S.2d 520 (1982) (mem.)), where the state acknowledged before the New York Court
of Appeals that "[alfter Officer Kraft had handcuffed and frisked [Quarles] in the supermarket, he knew with a high degree of certainty that the defendant's gun was within
the immediate vicinity of the encounter." Id. (emphasis in original).
114. Quarles, 104 S. Ct. at 2626. Justice Rehnquist was joined by Chief Justice
Burger, and Justices White, Blackmun and Powell. Justice O'Connor concurred in part
and dissented in part. Justice Marshall dissented, joined by Justices Brennan and
115. Id. at 2632.
116. Id. at 2631 (citing Michigan v. Tucker, 417 U.S. 433, 444 (1974)) (where the
Court reduced the Miranda requirements to mere prophylactics).
117. Quarles, 104 S. Ct. at 2631 n.5. This is apparent from the majority's assertion
that the respondent failed to claim that his "statements were actually compelled by police conduct which overcame his will to resist" and that this failure precluded the Court
from deciding if the statements were involuntary and therefore in violation of the fifth
amendment. Id. Under the Miranda doctrine, such statements were presumed involuntary. Miranda, 384 U.S. at 467. Further, the majority stated that Quarles could argue on
remand that his statements was coerced, in violation of due process. Quarles, 104 S. Ct.
at 2631 n.5.
118. Quarles, 104 S. Ct. at 2631.
[Vol. 6:153
crimination since Miranda."119
Although the New York Court of Appeals had determined
that the officers were not concerned with public safety at the
time of the arrest, 20 the majority nevertheless created a public
safety exception to Miranda.'21 The majority made the availability of the exception dependent upon an objective analysis of the
circumstances confronting the police officers at the time of arrest.1 22 The stated justification for the majority's exception was
its fear that a missing gun posed a threat to the public safety."'3
The majority's basic premise was that Miranda warnings deter
suspects from providing the necessary information to alleviate
the public safety threat. 24 The Court reasoned that the threat
will materialize unless police officers are allowed to dispense
with the Miranda requirements. The majority balanced the police officer's need for interrogation in such a situation against
the need for the "prophylactic" rule,' 25 and a public safety exception emerged.
The majority acknowledged that this "narrow" exception
clouded the otherwise clear guidelines Miranda provided police
officers.12 However, the majority viewed the exception as facilitating the police officer's job by allowing him to follow his legitimate instincts as to whether the warnings are to be adminis119. Id.
120. Id. The majority noted that the New York Court of Appeals declined to create
a "public safety" exception to Miranda. However, the court declined due to the lack of
factual support for such an exception, rather than the trial court's failure to find that the
police acted out of concern for public safety, as the majority mistakenly asserted. People
v. Quarles, 58 N.Y.2d 664, 666, 444 N.E.2d 984, 985, 458 N.Y.S.2d 520, 521 (1982).
121. Quarles, 104 S. Ct. at 2632.
122. Id. The majority rejected a subjective inquiry into the intent of the officers.
123. Id. The Court was referring to the possibility that "an accomplice might make
use of it, a customer or employee might later come upon it." Id. This assumption by the
majority is unlikely, as the dissent pointed out. Id. at 2642-43 (Marshall, J., dissenting).
These two factual situations were invented and inserted by the majority in order to support the exception. Id. at 2642.
124. Id. at 2632.
125. Id. at 2633. The majority stated "that the need for answers to questions in a
situation posing a threat to the public safety outweighs the need for the prophylactic
rule protecting the Fifth Amendment's privilege against self-incrimination." Id.
126. Id. But see infra notes 178-88 and accompanying text for a discussion suggesting that the exception is not narrow and could potentially have the effect of overruling Miranda.
tered. 12 7 Under the new "public safety" exception, all evidence
that the officers obtained
from Quarles became available to the
1 28
state for use at trial.
2. Justice O'Connor's Concurrence and Dissent
Justice O'Connor, in a separate opinion, dissented in part
and concurred in part.1 29 She contended that the majority failed
to provide adequate support for its departure from Miranda.5 0
Justice O'Connor stated that a public safety exception would
lend vagueness to the otherwise clear guidelines set forth in Miranda.1 1 She further maintained that if the police were concerned about possible danger to the public's safety, they could
still question suspects without administering the warnings.
However, they must forfeit the ability to use any incriminating
responses at trial. 33 Justice O'Connor noted that since the majority "conceded" that Quarles was subjected to a custodial interrogation and was deprived of his Miranda rights, his responses were compelled.8 4 Since "there is nothing about an
127. Id. This reasoning is illustrative of the Burger Court's unjust treatment of
Miranda. There is no need for the police officer to engage in an "on-the-scene balancing
process" as to whether to read a suspect his rights. Id. The warning is not optional. See
Miranda, 384 U.S. at 467.
128. Quarles, 104 S. Ct. at 2634.
129. Id. at 2634. (O'Connor, J., concurring in part and dissenting in part).
130. Id.
131. Id. at 2636. The exception is a detriment to the effective functioning of the
police and the courts. The objective test of the exception will result in inconsistent decisions in the courts. Id. The Supreme Court's sole task under Miranda was to decide
whether warnings should be administered. Further, Miranda has provided guidance for
police officers with respect to the proper means of conducting interrogations. Id. See
Fare v. Michael C., 439 U.S. 1310 (1978) (the strength of Miranda, its guidance, would
be lost if exceptions were made without any "principled limitations"). The virtues of
Miranda will be lost as a "finespun new doctrine on public safety exigencies incident to
custodial interrogation [results], complete with the hair-splitting distinctions that currently plague our Fourth Amendment." Quarles, 104 S. Ct. at 2636 (O'Connor, J., concurring in part and dissenting in part). The exceptions to the fourth amendment exclusionary rule are discussed at supra note 74.
132. Quarles, 104 S. Ct. at 2636. Therefore, a public safety exception is unnecessary since "Miranda has never been read to prohibit the police from asking questions to
secure the public safety." Id.
133. Id.
134. Id. Quarles' response was obtained in violation of Miranda and the fifth
amendment. The majority should not have proceeded to apply a balancing test, matching public safety against protecting the individual from compulsory self-incrimination.
Miranda removed the ability of the courts to balance by invoking the fifth amendment
[Vol. 6:153
exigency that makes custodial interrogation any less compelling,"13 5 noted Justice O'Connor, Quarles' statements must be
Justice O'Connor concurred with the majority on the admissibility of the gun.'" She predicated her reasoning upon a distinction between "testimonial" evidence and "real"or "physical"
evidence, concluding that the fifth amendment pertains solely to
3 7
"testimonial" evidence.'
Justice Marshall dissented, denouncing "[tihe majority's
treatment of the legal issues presented in this case [as] no less
troubling than its abuse of the facts. 1 38 The dissent claimed
that the majority made a "factual assumption" that a public
safety threat existed, in direct opposition to the findings of fact
of the state courts. 13 9 With regard to the legal issues, Justice
Marshall further attacked the majority for "misunderstanding"
and "misreading" the fifth amendment privilege against self-incrimination and Miranda." 0
as its basis. Id. Similarly, the dissent in Quarles further substantiated Justice O'Connor's
argument in stating that "[t]he majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs [or balancing] that arise
when the public's safety is at issue, [and] were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector
of individual liberties." Id. at 2649 (Marshall, J., dissenting).
135. Id. at 2636. (O'Connor, J., concurring in part and dissenting in part). The only
argument that the state could have asserted to avoid a finding of a fifth amendment
violation under Miranda was that the statement obtained was not compelled, but voluntary, an issue that the majority refused to discuss. However, in Miranda, all custodial
interrogations were presumed to be coercive. Therefore, unless Quarles "intelligently and
knowingly" waived his Miranda rights, the statement must be suppressed regardless of
the fact that the interrogation might have been spurred out of a concern for the safety of
the public. See Miranda, 384 U.S. at 475.
136. Quarles, 104 S. Ct. at 2636-37 (O'Connor, J., concurring in part and dissenting
in part).
137. Id. at 2637. For authority supporting this distinction and limiting the privilege
against self-incrimination to testimonial evidence, see Fisher v. United States, 425 U.S.
391 (1976) (papers are not within the purview of the fifth amendment); United States v.
Mara, 410 U.S. 19 (1973) (handwriting samples are not testimonial and not protected by
the fifth amendment); Schmerber v. California, 384 U.S. 757 (1966) (blood samples are
not protected by the fifth amendment).
138. Quarles, 104 S. Ct. at 2643 (Marshall, J., dissenting).
139. Id. at 2642,
140. Id. at 2645-46. Justice Marshall stated that "the majority cannot endorse the
'public safety' exception and remain faithful to the logic of Miranda." Id. at 2647.
Justice Marshall stated that the fifth amendment provided
for the exclusion of statements obtained through coercion.' 41 He
argued that unless interrogation in the interest of public safety
reduced the level of coercion inherent in such investigations, the
public safety exception would be in direct conflict with the mandates of the fifth amendment and Miranda.42 In Justice Marshall's view, the majority "endorsed the introduction of1 4coerced
self-incriminating statements in criminal prosecutions."
Justice Marshall further asserted that the gun, being derived from an illegally obtained source, should be excluded as
"tainted" evidence, in accordance with prior decisions., 4 In his
view, all of Quarles' statements were obtained in clear violation
of Miranda
and the fifth amendment, thereby requiring ex45
Ignoring the State Court's Findings of Fact
Quarles was detained at 12:30 a.m., in the rear of a "deserted" supermarket, surrounded by at least four armed policemen. 146 The testimony of the arresting officers depicted the situation as being "under control.""" Oral argument by the state,
presented to the New York Court of Appeals, confirmed the of141. Id. at 2646.
142. Id. at 2647. Justice O'Connor presented a similar argument. See supra text
accompanying notes 134-35.
143. Quarles, 104 S. Ct. at 2642 (Marshall, J., dissenting). See also Miranda, 384
U.S. at 467-68.
144. Quarles, 104 S. Ct. at 2649 (Marshall, J., dissenting). See supra note 58 for a
further discussion of the derivative evidence rule. However, Justice Marshall recognized
the Court's recent decision in Nix v. Williams, 104 S. Ct. 2501 (1984), where an inevitable discovery exception to the derivative evidence rule was created. Quarles, 104 S. Ct. at
2649-50 (citing Nix v. Williams, 104 S. Ct. 2501 (1984) (evidence that would inevitably
have been discovered without reference to police error or misconduct is admissible)).
Despite Justice Marshall's disagreement with the decision in Nix, he noted at least two
procedural obstacles to applying the exception. Quarles, 104 S. Ct. at 2650 n.12. He concluded that this issue alone should be remanded. Id. at 2650.
145. Id. at 2648. Interrogation initiated out of a concern for the public's safety does
not abrogate the constitutional violation that occurred, or, as Justice Marshall.stated in
the dissent, "[tihe policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the
public's safety." Id. at 2649 (Marshall, J., dissenting).
146. Id. at 2629-30, 2643.
147. Id. at 2642.
[Vol. 6:153
ficers' previous testimony."" The New York courts that ad-
dressed the issued concluded, after considering the evidence
from the subjective view of the officers, that there was no proof
that the public's safety or even that of the officers was the motivating factor underlying the interrogation.'" The New York
Court of Appeals, convinced that the existence of a threat to
public safety was purely illusory, reached the same conclusion
from an objective standpoint as well. 150 The court noted that
"there is no evidence in the record before us that there were
exigent circumstances posing a risk to the public safety or that
the police interrogation was prompted by any such concern."''
Therefore, it would seem that there was little evidence to support the Supreme Court's creation of a public safety exception
to Miranda.52
148. Quarles, 58 N.Y.2d at 666, 444 N.E.2d at 985, 458 N.Y.S.2d at 521. All of the
state courts determined that there was no evidence that the officers feared for their own
safety at the time of arrest, and testimony given by Officer Kraft at the suppression
hearing supported the New York Court of Appeals' assertion that fear of danger to the
public's safety was not implicated. Id.
149. Id.
150. Id. Attributing an illusory characteristic to the state's argument is supported
by the fact that the public safety argument was not advanced by the state until on appeal. Id. at 666, 444 N.E.2d at 985, 458 N.Y.S.2d at 521-22.
151. Id. at 666, 444 N.E.2d at 985, 458 N.Y.S.2d at 521.
152. Without considering the constitutional implication of the exception to Miranda, the minimum needed to justify a public safety exception should be evidence
showing that a safety threat exists. In the past, where the Court was confronted with a
situation where public safety was a concern to police officers during an arrest, no public
safety exception was created. See, e.g., Innis, 446 U.S. at 291 (1980). In Innis, the defendant left a gun hidden in a school area populated by handicapped children. Id. at 294.
There was more of a chance that the gun posed a threat to public safety in that case
than in Quarles. In Innis, public safety was the sole reason for the defendant confessing
as to its whereabouts. Id. at 295. However, the Court did not create a "public safety"
exception in Innis. Instead, in Quarles, the Court took the opportunity to create an exception, where in fact no public safety threat existed. See Quarles, 104 S. Ct. at 2641-42
(Marshall, J., dissenting) (coerced confessions are now admissible and the majority has
abandoned Miranda). For a further discussion of Innis, see supra text accompanying
notes 78-86.
See also Orozco v. Texas, 394 U.S. 324 (1968). At 12:00 a.m., Orozco shot and killed
the deceased outside a restaurant, and then proceeded home to his boarding house. At
4:00 a.m., four police officers arrived at the house, arrested and questioned Orozco about
the shooting and the location of the missing gun. Orozco confessed that the gun was
hidden in a washing machine in the back of the house. Id. at 325. No Miranda warnings
were administered, and the Court held that a fifth amendment violation had occured,
requiring suppression of all statements concerning the gun and the shooting. Id. at 326.
The missing gun in Orozco posed more of a threat to the safety of the public than the
gun in Quarles. In Orozco, the gun could have been hidden in numerous places, all of
In reviewing state courts' findings of fact, the Supreme
Court is required to accord a high degree of deference. These
findings "may be set aside only if [they] lack even fair support
in the record. '15' The record of the suppression hearing and the
opinion of the trial court judge provided more than adequate
support for concluding that the police officers did not consider
safety to be a factor.'1' In Quarles, the Court not only succeeded
1 55
in jeopardizing Miranda,
but it drastically altered the Court's
standard of review. 5" The consequences of making an exception
which were populated, as opposed to the alleged risk created by a gun known to be a few
feet away from four police officers in a deserted supermarket.
153. Rushen v. Spain, 104 S. Ct. 453, 457 (1983) (per curiam), reh'g denied, 104 S.
Ct. 1336 (1984). In Rushen, the Court held that factual determinations by the state's
trial and appellate courts are binding on the Supreme Court as long as the state court's
findings are "fairly supported by the record." Id. (citing Marshall v. Lonberger, 459 U.S.
422 (1983)). In Marshall, the Court, relying on 28 U.S.C. § 2254(d) (1982), stated that
there is a "presumption of correctness" afforded a state court determination after a hearing on the merits of a factual issue. Marshall, 459 U.S. at 432. Under the standard that
four members of the majority in Quarles asserted in Rushen and Marshall, the Court
should have given deference to the state courts' findings of fact.
If the majority did not overrule its own precedent, it appears that the issue of public
safety has been decided as a matter of law. The majority ignored the state courts' findings with regard to the subjective and objective view of the existence of a public safety
threat, and created an exception to Miranda for public safety reasons, despite facts supporting a contrary result. See also Sumner v. Mata, 455 U.S. 591 (1983) (factual findings
must be afforded the "highest measure of deference"). As a general rule, the trial judge is
in the best position to assess the demeanor of the witnesses and ascertain the truth of
the facts asserted. See, e.g., United States v. Oregon Medical Soc'y, 343 U.S. 326 (1952)
(Court will not review de novo unless trial court findings were clearly erroneous). See
also Watts v. Indiana, 338 U.S. 49 (1949) (Jackson, J., dissenting) (appellate courts have
same limited opportunity to ascertain the truth as does the Supreme Court); Boyd v.
Boyd, 252 N.Y. 422, 169 N.E. 632 (1930) (appellate court bound by trial court's findings
concerning factual questions).
154. Brief for Respondent at 7-9, People v. Quarles, 58 N.Y.2d 664, 444 N.E.2d 984,
458 N.Y.S.2d 520 (1982).
The trial judge, in support of his decision to suppress the evidence, held that "once
the defendant was arrested, [hie was now entitled to the Miranda warnings before any
questioning as the police had reasonable cause to arrest and the officers' safety was not
in question." Id. at 7-8. Similarly, Officer Kraft's testimony that the situation was under
control supports the New York Court of Appeals' assertion that the public's safety was
not in question. See supra note 113 and accompanying text for a review of the Court of
Appeals' opinion.
155. Quarles, 104 S. Ct. at 2634, 2643. As the dissenting opinion asserted, "[bjy
finding on these facts justification for unconsented interrogation, the majority abandons
the clear guidelines enunciated in Miranda v. Arizona,. . . and condemns the American
judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations."
Id. at 2641-42.
156. See Watts, 338 U.S. at 50. The standard of review, prior to Quarles, was
[Vol. 6:153
to well settled doctrine, without any factual support, is to promote abuse. The factual setting that existed in the case in which
the exception is developed becomes the standard to which the
exception is applied. If no public safety threat existed in
Quarles, as the facts suggest, a danger lies in the possibility that
the exception will be applied in other cases where there is no
threat to public safety.
Absence of a Nexus between a Public Safety Exception and
the Miranda Requirements
Assuming public safety is a legitimate concern for police officers during an arrest, the majority was under the misconception that the administration of Miranda warnings impedes the
police officers' ability to alleviate such threats. The majority assumed that if the police are required to administer Miranda
warnings before asking the whereabouts of a weapon, suspects
will be deterred from responding. 157 This assumption is groundless, as there is no positive correlation between the administration of Miranda warnings and the refusal of suspects to talk.1l 5
Therefore, the underlying rationale advanced for the exception
lacks a nexus with Miranda.
stated by Justice Frankfurter:
[AIll those matters which are usually termed issues of fact are for conclusive
determination by the State courts and are not open for reconsideration by this
157. Quarles, 104 S. Ct. at 2632.
158. See Note, Interrogationin New Haven: The Impact of Miranda, 76 YALE L.J.
1519 (1967), where the authors stated that there is a positive correlation between the
warnings and successful interrogations rather than non-successful interrogations. Id. at
159. See infra note 160 and accompanying text for studies that demonstrate the
absence of a nexus between Miranda warnings and the refusal of suspects to talk.
In his dissenting opinion, Justice Marshall advanced a different argument demonstrating the peculiarity of the public safety exception. Quarles, 104 S. Ct. at 2648 (Marshall, J., dissenting). The opinion points out that a public safety exception to Mirandais
unnecessary because police officers can refrain from giving the warnings at any time if in
their judgment it would better protect society from a safety risk. Id. The prosecution is
simply precluded from having the evidence admitted at trial. When reviewing the exception in this light, it becomes clear that the real victim of the exception is not Miranda,
per se, but the fifth amendment. The products of a coercive interrogation can not be
used for an incriminating purpose without showing that interrogation designed to alleviate an alleged public safety hazard is less compelling than other interrogations. Id. at
2647. Since the Court is assuming a legislative role by creating this exception, it should
Numerous studies have been conducted on the effects of
Miranda on law enforcement officials' ability to obtain confessions. 60 Contrary to the criticism of Miranda advanced by the
Miranda dissents and the advocates of the Burger Court's coerced confession decisions, Miranda warnings do not substantially impair the police officer's ability to obtain confessions.
Conversely, it has been suggested that any attempt to deprive
the individual of rights once afforded to him may prove to be
at least be held to the standard of review that the Court imposes on congressional or
state administrative, legislative or executive action that infringes on a constitutional
right. See, e.g., Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1969)
(state court injunction reviewed under judicial review standard for legislative action).
160. Studies analyzing the impact of Miranda include Leiken, PoliceInterrogation
in Colorado: The Implementation of Miranda, 47 DEN. L.J. 1 (1970) (interviews of interrogated suspects in Denver revealed that warnings do not deter suspects from talking
and suggested an expanded reading of Miranda to include a nonwaivable right to counsel); Medalie, Zeitz & Alexander, CustodialInterrogationin Our Nation's Capital: The
Attempt to Implement Miranda,66 MICH. L. REV. 1347 (1968) (study showed a significant number of suspects gave statements after warnings given); Seeburger & Wettick,
Miranda in Pittsburgh-StatisticalStudy, 29 U. PrTT. L. REV. 1 (1967) (results of a
study indicated that after Miranda one-third of suspects confessed and conviction rate
did not decline); Younger, Results of a Survey Conducted in the District Attorney's
Office of Los Angeles County Regarding the Effect of the Miranda Decision Upon the
Prosecution of Felony Cases, 5 AM. CRIM. L.Q. 32 (1966) (Miranda'seffect on number of
confessions did not impair ability of police or prosecution to issue complaints or obtain
convictions) [hereinafter cited as Younger, District Attorney]; Younger, Interrogationof
Criminal Defendants-Some Views on Miranda v. Arizona, 35 FORDHAM L. REv. 255
(1966) (summary of Miranda survey revealed limited impairment of prosecutor's job)
[hereinafter cited as Younger, Interrogation].Prior to Miranda,Los Angeles police had
to adhere to the Miranda-like requirements set forth in People v. Dorado, 62 Cal. 2d
338, 398 P.2d 361, 42 Cal. Rptr. 169, cert. denied, 381 U.S. 937 (1965). A limited survey
conducted on the effect of Dorado in Los Angeles concluded that police did comply with
the requirements and a significant number of confessions were obtained. Younger, Interrogation, supra, at 256. The prosecutors were still able to issue a large number of complaints which resulted in conviction. Id. at 257-59. Although the survey sample size and
questions asked were limited, the author speculated that the Dorado decision did not
impair efficient prosecution of cases. Id. at 259. The author reached the same conclusion
after an evaluation of the effects of Miranda. Id. at 262. See also Note, Interrogation,
supra note 158, at 1519 (study conducted for three months after Miranda decision found
interrogators more successful in obtaining incriminating evidence when warnings given).
For a critique of the studies conducted in New Haven and Washington, D.C., see FUNSTON, supra note 60, at 170-75.
For an analysis of confessions from a psychological viewpoint, see Driver, Confessions and the Social Psychology of Coercion, 82 HARV. L. REv. 42 (1968) (coercive nature
of interrogations presented enough psychological pressure to induce confessions despite
administration of Miranda warnings); Sterling, Police Interrogationand the Psychology
of Confession, 14 J. Pus. L. 25 (1965) (psychological factors, including conscience and
feeling of entrapment, lead to confessions even if Miranda warnings given).
[Vol. 6:153
the true deterrent factor inhibiting the officer's ability to obtain
confessions in future cases.""
The conclusion that is derived from these studies is that
there is not a significant difference between the percentage of
confessions obtained prior to the formal implementation of the
Miranda requirements and the percentage obtained afterward.
In a study conducted in New Haven,"'2 the results indicated that
suspects did not refuse to talk, nor were they any more apt to
request the presence of counsel after being administered the
161. See United States v. Mesa, 638 F.2d 582 (1980). In Mesa, the defendant, a
suspected murderer, locked himself up in his room which was surrounded by police officers. Id. at 583. FBI agents induced him, by means of statements laced with expressions
of trust, to surrender after defendant had revealed incriminating evidence. Id. at 584.
The agents failed to advise him of his Miranda warnings prior to the initiation of this
question-laden inducement. Id. The district court suppressed the evidence. Id. The court
of appeals reversed because the suspect was held not to be in custody and his statements
were found to be voluntary. Id. at 589. However, the concurrence warned against such
admissions, pointing out that although such statements were admissible, the state should
refrain from relying on them since future suspects may become more reluctant to negotiate with the police if they fear statements made will be used at trial to incriminate them.
Id. (Adams, J., concurring). Further, "[o]nce alerted to the possibility that the government may abuse or breach the trust by not adhering to its assurances of aid and friendship, suspects may be more reluctant to negotiate with the police." Id. at 591. Consequently, a refusal to cooperate, as suggested by the concurring opinion, is possible
whenever the government takes away from the individual that to which he is entitled
and that which the government provided in the past (such as the benefits of Miranda).
See also Kamisar, On the Tactics of the Police-Prosecution Oriented Critics of the
Courts, 49 CORNELL L. REv. 436, 464-71 (1964). The same criticisms directed at Miranda
were targeted at the Mallory rule and the critics proved to be wrong. Id. at 466-67. The
critics contended that the Mallory rule resulted in more criminals being set free, more
unsolved crimes due to less confessions, and an impairment of effective police functioning. Id. at 455, 466-67. However, as Professor Kamisar stated, the figures on the crime
rate and clearance rates not only did not support the attack on the rule, but there was an
increase in the number of crimes "cleared by arrests." Id. at 444 n.173, 467. Thus, the
critics were proven to be wrong. The Mallory rule is discussed at supra notes 29-35.
162. See Note, Interrogation,supra note 160. Three comments regarding the study
are warranted: First, the study does not depict on the street investigation. However,
given the similarity between questioning in a police dominated atmosphere, as was the
situation confronting Quarles, and station house questioning, the results of the study are
applicable. Additionally, although the study was conducted in 1966, the authors explicitly state that "[their] conclusions should not be affected by time." Id. at 1533. Finally,
there were no instances of interrogations conducted for the purpose of recovering weapons that were used in perpetuating the crime. However, as the authors confirm, once the
police have caught a suspect and he is aware that police have evidence of his guilt (for
example, the empty shoulder holster in Quarles), the suspect will provide information of
this type to enhance his position. Id. at 1572, 1597. Therefore, it is beneficial to society
for the warnings to be administered.
warnings, as opposed to when no warnings were given."6 3 Out of
a total of eighty-one cases where warnings were administered, in
only eight did the warnings succeed in deterring the defendants
from responding to police questioning. 64 In fact, the confession
rate was higher when warnings were given as opposed to when
some or no warnings were administered. 65 Similar studies were
conducted in Pittsburgh 6' and in Denver 1 7 revealing a decrease
in the number of confessions. However, this decline is inconsistent with the drastic results that opponents of Miranda had
Applying these results to the purpose advanced for the public safety exception, it is difficult to find a connection between
Miranda warnings and protecting against the refusal of defendants to give needed confessions at a time when safety may be
endangered. One possible explanation for the majority's critical
error in reasoning lies in a mistaken concept of the purpose of
the Miranda doctrine. The requirement that Miranda warnings
precede interrogation is not to discourage defendants from cooperating with police. 6 9 The warnings serve as an expression of the
163. Id. at 1523. The results of interviews with fifty-five defense attorneys show
that Miranda adversely affected (suspect refused to talk) a "necessary" interrogation
(where confession or other evidence needed for conviction) in six of the 127 cases whose
interrogations were witnessed.
164. Id. at 1563. See also Driver, supra note 160, where the author states that "it is
not hard to speculate that there is a positive correlation between warnings and successful
interrogations." Id. at 61.
165. Note, Interrogation,supra note 160, at 1565. More than half of those who
were given some warnings incriminated themselves, while only eight of twenty-seven suspects not warned at all gave incriminating evidence. Id. Further, where obtaining a confession was necessary to solve the crime, out of a total of twelve cases analyzed, "Miranda warnings could not have impeded crime solution in more than 6 cases." Id. at
166. See Seeburger, supra note 160.
167. See Leiken, supra note 160.
168. See Seeburger, supra note 160, at 6 (providing a statistical analysis of confessions obtained with and without warnings).
169. See Sterling, supra note 160, at 58-60. Prior to Miranda, the response from a
number of states to laws paralleling the Miranda warnings had already discredited the
Miranda dissents and critics for erroneously attributing a quality to Miranda that was
simply not realistic. Id. The view that Miranda warnings could hamper police functioning and deter suspects from confessing was not supported by the results of a pre-Miranda survey, designed to elicit various states' reaction to the imposition of Mirandatype requirements on police officers. Administrators and law enforcements agency heads
representing thirteen states (with Texas divided into three areas, each area providing a
separate response) were polled and questioned on their reaction to laws that required
[Vol. 6:153
state's acknowledgment of individual rights, and encourages police officers to act in a constitutionally permissible manner.'"0
Suspects still talk. Many reasons have been advanced as to
why this is so, namely "conscience,''
"hopes of leniency,' 7 2 in73
herent tendency to cooperate's feelings of shame, 74 and fear of
being beaten upon. 1 75 Suspects are even more apt to talk when
the police confront them with incriminating evidence, 7 e such as
police to follow two requirements. The representatives were asked whether a law requiring police to inform a suspect that he did not have to incriminate himself would make it
more difficult to obtain confessions. Out of a total of 14 responses, only 4 responded in
the affirmative. Id. at 58. They were also asked whether a law requiring that a suspect be
informed of a right to counsel prior to interrogation and the suspect's request for counsel
during interrogation would make it more difficult to'obtain a confession. Out of a total of
12 responses, only 4 responded in the affirmative. Id. at 60.
170. Police officers are prone to neglect an individual's constitutional rights while
in pursuit of their investigatory duties. The need to protect individuals' rights from zealous officers was recognized by the Court in the fourth amendment context in Johnson v.
United States, 333 U.S. 10 (1947), as justification for the requirement that a warrant be
issued by "a neutral and detached" magistrate prior to executing an arrest or search. Id.
at 13-14. The Court determined that it was necessary to involve the judiciary in the
investigative process to prevent officers from acting in violation of the fourth amendment. Similarly, if fifth amendment rights are ignored at that time, whatever protection
the Constitution offers the defendant at trial becomes meaningless. The warnings are, in
effect, the only permissible means to ensure that the evidence obtained complies with
the mandates of the fifth amendment. Otherwise, if evidence derived through involuntary confessions were admissible at trial, the integrity of the court would be jeopardized.
171. , Younger, District Attorney, supra note 160, at 34.
172. Leiken, supra note 160, at 24.
173. Medalie, supra note 160, at 1378.
174. Driver, supra note 160, at 58.
175. Medalie, supra note 160, at 1378. It has been suggested that the reason for the
discrepancy between the critics' conclusions and the data obtained lies in the inability of
the suspects to ascertain the meanings of their rights, thus rendering Miranda a useless
requirement. However, the Denver study explored that possibility and concluded that its
results did not support that proposition. See Leiken, supra note 160, at 17. After questioning defendants on their knowledge or understanding of their rights, those who were
perceived as having comprehended or recollected the warnings were not less inclined to
talk during the interrogation. Id. Those who remembered their rights revealed more incriminating statements than those who could not remember. Id. Although there are
many who do not fully understand the warnings or just do not want to exercise their
Miranda rights, this does not necessarily mean that Miranda is ineffective and unnecessary. At least two opposite conclusions are possible. Either Miranda did not go far
enough in providing individuals with the necessary information to exercise their rights;
or, even if defendants do not want to avail themselves of their constitutional rights, they
should be given the opportunity to do so. See Miranda, 384 U.S. at 468. Miranda provides this opportunity and prevents police techniques which are inconsistent with these
176. See Driver, supra note 160, at 50 (describing manipulative tactics taken by
interrogators to get around the Miranda requirements and still produce admissible evi-
an empty shoulder holster. 7' These results tend to contradict
the basis for the majority's public safety exception.
The Consequences of a Public Safety Exception: A Breeding Ground for Abuse
The majority in Quarles announced that "on these facts"
there is a public safety exception to Miranda and the availability of the exception will not depend on whether police officers
subjectively believe a public safety threat to exist.1 7 The Court
will not inquire into "unverifiable motives' 179 despite the fact
that the police officers may be acting for the sole purpose of obtaining incriminating evidence. 80 After having concluded that
police act for a variety of reasons, including the sole purpose of
obtaining incriminating evidence, which the Court did not question, and that police officers are unable to discern whether individual rights, safety, or the pursuit of incriminating evidence
should be given priority, the Court decided to relieve the officers
of this balancing process by allowing them the freedom "to follow their legitimate instincts."' 8 1
The exception has the potential for limitless application. No
practical guidelines are provided, nor is any meaning assigned to
the concept of what constitutes a public safety threat. The only
indicia of guidance set forth was the statement on the facts
dence); Medalie, supra note 160, at 1378 (suspect confessed because "they (the officers)
had me cold").
177. Quarles, 104 S. Ct. at 2630.
178. Id. at 2632. The majority stated that "the application of the exception which
we recognize today should not be made to depend on post hoc findings at a supression
hearing concerning the subjective motivation of the arresting officer." Id. The rationale
advanced for the exception was a need to relieve police officers of thinking about
whether to give the warnings and destroy any chance of obtaining evidence or not administer the warning and forfeit the use of incriminating evidence at trial. Id. at 2633.
179. Id. at 2632.
180. Id.
181. Id. at 2633. The majority placed much faith in the "legitimacy" of police "instincts." Id. The majority determined that police instinctively can distinguish between
questions necessary to eliminate a safety threat and those designed to elicit incriminating evidence. Id. In Miranda, the Court severely questioned the legitimacy of police actions. See Miranda, 384 U.S. at 446-455. Further, the majority in Quarles cast doubt on
its own determination when it stated that police in Officer Kraft's position do act for the
sole purpose of obtaining incriminating evidence. Quarles, 104 S. Ct. at 2632. The majority allowed them the freedom to follow their instincts without questioning their legitimacy. Further, the Court will even supply legitimate reasons, as in Quarles, if the police
officers' actions do not express them or their testimony fails to provide them. Id.
[Vol. 6:153
presented." 2 However, the New York state courts determined
that on these facts no public safety threat existed. Without further guidance, the exception will be applied again where no
threat exists. s To understand the potential for abuse l8 " that
this public safety exception can produce, general legal definitions may supply the necessary limitations on the exception that
the majority failed to provide. The common definition of "public
safety" is "the law enacted by a state for the protection of the
public from injury and dangers."1x5 Therefore, any detriment to
society can be classified as a public safety concern, and "criminal behavior" constitutes such a detriment. "Criminal behavior"
includes "conduct which causes any social harm which is defined
and made punishable by law."""6 "A suspect" is defined as ' "a
person reputed or suspected to be involved in a crime.'
182. Quarles, 104 S. Ct. at 2632.
183. Quarles, 58 N.Y.2d at 666, 444 N.E.2d at 985, 458 N.Y.S.2d at 521. The New
York state courts found that on these facts no public safety threat existed, under either a
subjective or objective standard. For a discussion of the state court opinions, see supra
notes 105-107 and accompanying text.
184. See Northern Securities Co. v. United States, 193 U.S. 197 (1904). Justice
Holmes stated:
Great cases like hard cases make bad law. For great cases are called great, not
by reason of their real importance in shaping the law of the future, but because
of some accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment.
Id. at 400-01.
1107 (5th ed. 1979). Courts have resorted to the dic-
tionary to define terms that have not been clarified by precise definition. It is therefore
conceivable that courts, in an effort to apply the public safety exception, will resort to
the dictionary as a source for defining safety. See, e.g., In re Joseph G., 7 Cal. App. 3d
695, 703, 87 Cal. Rptr. 25, 30 (1970); Underwood v. Atlanta & Westpoint R.R. Co., 105
Ga. App. 340, 124 S.E.2d 758, 766 (1962). Both of these cases referred to Webster's Dictionary to define the term safety as used in city ordinances. It is important to note that
when courts interpret statutes there is a check on their ability to attribute too broad a
meaning to the definition of safety. Since these cases involved issues of statutory interpretation, the courts were restricted by rules of statutory construction. Conversely,
courts analyzing the safety component of the exception advanced in Quarles will not be
so limited.
See also Towne v. Eisner, 245 U.S. 418 (1918), in which Justice Holmes distinguished the meaning of the term "income" as used in a revenue act from the meaning of
the same term in the sixteenth amendment. Stated Holmes, "[a] word is not a crystal,
transparent and unchanged, it is the skin of a living thought and may vary greatly in
color and content according to the circumstances and the time in which it is used." Id. at
425. Thus, the Quarles majority failed to appreciate the consequences that result when it
created a standardless exception subject to such a degree of generality.
Id. at 1297.
336 (5th ed. 1979).
Therefore, anyone suspected of a criminal behavior constitutes a
danger to society and is a potential victim of the exception.
Since all suspected criminals arguably are within the definition
of a public safety concern, the police never will be obligated to
provide Miranda warnings at the time of arrest. Although this
takes the exception to the extreme, it is not unrealistic given the
broad degree of discretion the majority afforded police officers
and the vagueness with which the exception was drafted.' 8
In the majority's view, an exception was necessary to relieve
police officers from the burden of balancing public safety concerns against protecting individuals from the use of compelled
testimony at trial. 8 9 However, the majority proceeded to cloak
police officers with the instinctive ability to decide which questions are needed to alleviate a public safety threat and refrain
from asking those that are designed explicitly to obtain incriminating evidence. The facts in Quarles reveal the inconsistencies
in the majority's reasoning and the lack of justification for the
majority's conclusions.' 9 Police officers will not limit their questions to those necessary to alleviate a public safety hazard. Since
Officer Kraft testified that the situation was under control, he
questioned Quarles for the sole purpose of obtaining incriminat188. See supra notes 178-81 and accompanying text, which discusses the broad language of the exception.
189. Quarles, 104 S. Ct. at 2633. The majority balanced the burden confronting
police in Officer Kraft's position against the potential loss of evidence if Miranda warnings are administered. In contrast, Justice O'Connor regarded the "cost-benefit analysis,"
or a balancing conducted by the majority, as missing the point. Id. at 2636 (O'Connor, J.,
dissenting in part and concurring in part). A balancing test is improper where the fifth
amendment is involved. Id. The state must always bear this burden and thereby forfeit
the claim to any evidence obtained without proper warnings given, regardless of the fact
that the police officer acted in the interest of public safety. Id. Justice Marshall saw the
potential for abuse with the majority's balancing test, warning:
The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public's safety
is at issue. Indeed, were constitutional adjudication always conducted in such
an ad hoc manner, the Bill of Rights would be a most unreliable protector of
individual liberties.
Id. at 2649 (Marshall, J., dissenting).
190. Testimony given by Officer Kraft did not suggest that public safety was a factor at the time of arrest. Quarles, 58 N.Y.2d at 666, 444 N.E.2d at 985, 458 N.Y.S.2d at
521. Predictively, the record failed to reveal any evidence that Officer Kraft, or any of
the other officers, engaged in such a balancing process. Police officers should not balance
whether to administer Mirandarights since the warning is required and should be given
[Vol. 6:153
ing evidence. As the facts in Quarles illustrate, the majority allocated too much discretion to police officers without providing
any effective guidelines to protect against abuse.'91
Whether the Miranda warnings are viewed as a "constitutionally compelled remedy,' 9 2 as a mere "prophylactic,"' 9 3 or as
a "constitutional right, in itself,' 94 it is obvious that some safe-
guard is needed to protect individuals from the coercive nature
of police interrogation and to prevent the fifth amendment from
becoming a "mere form of words."' 95 In fact, many have suggested that Miranda did not go far enough, since, despite Miranda, police officers still employ abusive tactics to obtain confessions. 96 Therefore, instead of continually making unwarranted exceptions to Miranda in an attempt to undermine its
constitutional basis and importance, the Court should take advantage of the opportunity that cases such as Quarles present
and make an effort to expand and redefine Miranda's scope.
The public safety exception announced in Quarles constructively overruled Miranda by reducing the Miranda warnings to
an option rather than upholding them as a judicially interpreted
constitutional requirement. Once a suspect is in custody, police
are no longer required to administer the warnings before initiating an interrogation, since a claim involving a public safety
threat will always be present and dispel their fears of exclusion.
Consequently, a public safety exception presents a green light
for police officers to engage in the same abusive practices that
191. Id.
192. Monaghan, supra note 60, at 21 (no historical support for finding Miranda
warnings a constitutional right).
193. Tucker, 417 U.S. at 445-46.
194. Schrock, supra note 1, at 56. See also Miranda, 384 U.S. at 469, 477.
195. Mapp v. Ohio, 367 U.S. 643, 648 (1961) (quoting Silverthorne Lumber Co. v.
United States, 251 U.S. 388 (1920)) (deterring unlawful police conduct is necessary to
give meaning to the individuals' constitutional rights, otherwise they are given rights
without opportunity to enjoy them).
196. See, e.g., White, Police Trickery in Inducing Confessions, 127 U. PA. L. REv.
581 (1979) (discussing interrogation tactics which circumvent Miranda limitations and
the need for more coherent guidelines specifically proscribing such practices).
197. For a critique of the limited effect of Miranda on interrogations, where the
author argued for an expansion of the holding to include a non-waivable right to counsel,
see Leiken, supra note 160, at 46-51.
some had employed prior to the inception of the Miranda
The facts of Quarles set the standard and guidelines for the
application of the public safety exception. Since the New York
courts found no evidence of a safety threat, the standard is such
that a public safety exception can be invoked when no public
safety risk exists. This is further supported by the Court's refusal to inquire into the subjective intent of the arresting officer.
Thus, the finding of a public safety exception will become the
rule and the finding of a Miranda violation will prove to be the
exception. Eventually, this exception may lead to the Miranda
doctrine's extinction.
Mona B. Camhe